Title III of the Americans with Disabilities Act (ADA) covers “places of public accommodation.” Public accommodations are 12 broad categories of businesses that are open to the public. Clearly, online-only stores and service providers are public accommodations. But are they “places?” And if a public accommodation has a website, is its website required to be accessible? What does accessibility of a website mean under the ADA?
First, let’s consider whether the online presence of a public accommodation is covered under the ADA. The Department of Justice has issued guidance stating that websites of businesses are covered by Title III of the ADA as long as they fall within one of the 12 categories of public accommodations. In other words, a “place” need not be a physical location. The Department has also consistently taken the position that all the goods, services, and information provided by a public accommodation are covered by the ADA, including those provided through the internet.
But the Department has not yet issued formal regulations making that position a part of the applicable law. So courts owe the Department’s informal guidance only a limited amount of deference and the courts may take different approaches to the question.
So far, the only federal courts of appeals to specifically address the ADA’s application to websites are the Ninth Circuit and the Eleventh Circuit. The Ninth Circuit has confirmed that it will find a website to be subject to the ADA only if the site has a nexus to a physical place of public accommodation. See Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019). In the Eleventh Circuit, Rendon v. ValleyCrest Prods., Inc., 294 F.3d 1279 (11th Cir. 2002), a non-website case, had indicated that the Circuit might also follow the nexus approach. In Gil v. Winn-Dixie Stores, Inc., the district court found that Winn-Dixie’s website was required to be accessible because it had a close connection to Winn-Dixie’s physical stores. A panel of the Eleventh Circuit Court of Appeals reversed and held that a website would only be covered if the website’s inaccessibility actually hampered access to the physical store. However, when the plaintiff petitioned for rehearing by the full Court, the full Court found that the appeal was moot and vacated the panel’s decision. As a result, there is no precedent on the specific issue of website coverage from the Eleventh Circuit.
The other courts of appeal have not addressed the issue specifically in the context of websites. But some circuits have given us clues – mostly in cases involving insurance policies – as to what they might find if presented with the question. These clues indicate that
So far no Circuits have indicated that the websites of public accommodations are not covered by the ADA. But litigation over the issue will likely continue until the Justice Department issues regulations, the Websites and Software Applications Accessibility Act is passed (Duckworth/Sarbanes), or the Supreme Court issues a definitive ruling.
The Justice Department does plan to issue regulations on website accessibility, beginning with Title II of the ADA, in the Spring of 2023.
In the meantime, there is really no excuse not to make business websites accessible. Any website with a nexus to a physical place is certainly covered by the ADA, at least in the Ninth Circuit – and websites are not limited to particular circuits or states, so there is no way around compliance. For online-only businesses, there is also likely no escape from ADA coverage, since four circuits appear ready to say those websites are also covered.
So what does the ADA require from a website? The basic requirement is “effective communication” with people with disabilities, 28 C.F.R. § 36.303(c), which public accommodations must achieve by providing auxiliary aids and services, such as accessible websites. Effective communication is not a technical standard, but a practical one. A common definition is “allowing individuals with disabilities to access or acquire the same information, engage in the same interactions, and enjoy the same products and services that the website offers its nondisabled customers with substantially equivalent ease of use.”
The Justice Department and other agencies have all found that the Web Content Accessibility Guidelines (WCAG) 2.0 (and 2.1) Level A and AA meet the requirement of effective communication and have required WCAG 2.0 or 2.1 compliance in numerous settlement agreements. Therefore, complying with WCAG 2.0 or 2.1 Level AA is a sure way to comply with the ADA. However, that standard is not required by the ADA. A business is free to apply another standard, as long as it results in the website providing effective communication equivalent to what is offered to nondisabled people.
A number of questions have not yet been answered and await resolution by Department of Justice regulations and courts, including:
February 2023 was a big month for Section 508 of the Rehabilitation Act. After congressional hearings and a damning report from Senator Casey’s office, on February 21, 2023, the U.S. Department of Justice (DOJ) released its long-awaited report on Section 508 compliance by federal agencies. Meanwhile, on February 17, 2023, the U.S. Court of Appeals for the D.C. Circuit held that federal employees can sue to enforce Section 508 when the technology they need to use for their jobs is inaccessible. The DOJ report indicates that there is a great deal of work to do, but the D.C. Circuit decision provides a pathway for getting the work done.
Section 508 of the Rehabilitation Act requires federal agencies to ensure all the information and communication technology they purchase, develop, maintain or use is accessible to people with disabilities in compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. The DOJ is required to report on progress across federal agencies to comply with Section 508 every two years. However, the last such report issued by the DOJ was in 2012.
The DOJ report just issued shows that agencies are largely not complying with their obligations – even though the report is based primarily on self-reported data not independently verified, it is clear that federal technology remains inaccessible, even decades after Section 508 was passed.
The data on the accessibility of internet and intranet sites and downloadable documents is illustrative. The reviewed agencies conducted primarily automated testing of various of their websites and found that, of a total of 22 million internet pages, 1 in 10 were not conformant with the WCAG standards. One problem with this data is that it is not statistically significant – there is no data regarding what percentage of total federal web pages were tested. In addition, some agencies (16%) tested 50 or fewer pages of their websites, undermining the validity of the sample. Another problem is that automated testing only reflects a small portion of the standards (25-30%). In addition, importantly, removing one agency’s test results from the dataset lowers the conformance level to 70% – 3 in 10 websites being inaccessible. Thus, it is clear that this average is not reflective of actual agency performance – a few agencies are doing well and others are abysmal.
The data are even worse for employee-facing (“intranet”) websites. Only 41% of the intranet pages tested were conformant. And 12.5% of agencies did not test their intranet pages at all.
Finally, document downloads from federal websites were shockingly inaccessible. The vast majority of the top 10 agency downloads are PDF documents and the majority of those – over 2/3 – were inaccessible. Most of those were untagged PDFs, meaning they have no markup information at all, making them completely inaccessible.
All this is the result of a lack of attention paid to Section 508 compliance – in terms of resources and measurement of outcomes. The data in the report shows that many agencies far overestimate the maturity and resources of their Section 508 programs. 7 agencies reported that their Section 508 programs met the highest standard of maturity – “Measured.” 12 reported the second-highest level – “Resourced.” 14 reported their programs were at the “Planned” level. And only 1 reported that its program was “Ad Hoc.” Yet 20 of the 34 agencies reported a lack of sufficient data for decision making. And all but 6 agencies reported that they had less than 50 staff assigned to their program, with 14 reporting fewer than 25 and 10 not reporting at all. 2 reported having only 1 FTE. With so little staff, it seems unlikely a program could qualify as “Resourced” or “Measured,” or even “Planned.”
But all is not lost. Some courts had held that federal employees could not sue to challenge violations of Section 508 by their federal employers. Instead, those courts had said employees could only pursue remedies under Section 501, which allows reasonable accommodations, without fixing the inaccessible technology at the heart of the violation. On February 17, the D.C. Circuit, in Orozco v. Garland, made clear that this is not the case and that federal employees may enforce their right to accessible technology under Section 508. Without such a “private right of action” federal employees had to rely on human readers or interpreters for inaccessible technology and videos even though accessible technology could be independently usable by employees with disabilities.
Mr. Orozco is an intelligence analyst for the FBI. He is blind and uses screen reader software which converts visual screen information into synthesized speech or braille. He filed a complaint with the agency that much of the FBI software he needed to use for his job was not properly coded to be accessible by a screen reader. The agency treated his complaint as an employment discrimination complaint under Section 501 instead of a technology complaint under Section 508 and dismissed the complaint because the agency was providing reasonable accommodations. He filed suit under Section 508 and the district court dismissed, ruling that, because Section 508 adopted the enforcement rights and remedies of Section 504 applicable to federal providers of funding assistance, agencies could only be sued in their capacity as funding assistance providers. Because the FBI was Mr. Orozco’s employer and was not acting as a funding provider, the court found there was no private right of action for employees to sue their federal agency employers under Section 508.
The D.C. Circuit reversed, noting that the district court’s analysis would mean no one would be able to sue a federal agency under Section 508 for its inaccessible technology. The Court held that Section 508 incorporated Section 504’s procedures, but not the limitations on who could sue because Section 508 provided its own definition of who could sue (any “person aggrieved”). Reading it as the district court had would leave no one capable of enforcing Section 508 and “[r]eading a statute expressing authorizing ‘civil actions’ to authorize no civil actions would be to render that provision a nullity.”
Both of February’s Section 508 developments provide some hope that Section 508 implementation may finally move forward through a combination of transparency, shame, and legal action.
Covers:
Title II – State and Local Government Programs
Title III – Public Accommodations (12 categories)
Requires “effective communication” – anything that communicates between a covered entity and the public must be communicated effectively to/from people with disabilities. Covers online communications: websites, mobile apps, games, etc.
Website and mobile app regulations under Title II expected from Department of Justice in Spring 2023.
Enforceable by
Examples of enforcement:
U.S. v. CVS Pharmacy, Inc. – Department of Justice settlement requiring CVS to make its online vaccine portal accessible
Robles v. Domino’s Pizza – 9th Circuit Court of Appeals held that public accommodations such as Domino’s Pizza with physical locations must make their websites and mobile apps accessible. District Court granted summary judgment to Mr. Robles because the Domino’s website was not accessible, and required Domino’s to make its website compliant with WCAG 2.0 and pay Mr. Robles $4,000 in damages. Settlement reached to make mobile app accessible.
National Federation of the Blind of Washington v. Boeing Employees Credit Union – settlement to make online and mobile banking accessible to people with vision and print disabilities.
Fernandez v. Duke University – lawsuit and settlement under which Duke will retain an expert in providing accessible materials to blind students in higher education and work with the consultant to revise its policies and guidelines regarding materials in alternative format that are intended to provide blind students at Duke with accessible course materials, including textbooks and other instructional materials, in a timely manner prior to use by the instructor in the course.
National Federation of the Blind v. Office of Personnel Management – lawsuit and settlement requiring OPM to make online health benefit information accessible to people with vision and print disabilities.
National Federation of the Blind v. Social Security Administration – lawsuit and settlement to make SSA Visitor Intake Processing kiosks accessible to blind patrons.
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Accessible Canada Act (2019)
Accessibility for Ontarians with Disabilities Act (2005)
Accessibility for Manitobans Act (2013)
Nova Scotia Accessibility Act (2017)
European Web Accessibility Directive (EU 2016/2102)
EU Directive 2019/882
Disability Discrimination Act (1992)
Equal Rights of Persons with Disabilities Act, Israel Standard 5568 (2017)
